Constitutional Questions Surrounding the Court’s SSM Decision

Feelings run hot and opinions are strong when it comes to the Same-Sex-Marriage (SSM) decision handed down by the U.S. Supreme Court recently. On this issue the nation is clearly divided and those on both sides of the issue are unbending in their opinions. Consequently, it can be difficult to find the calm needed to make an objective analysis of the Constitutional ramifications of the Court’s decision. Like America, the Court is split concerning the decision and feelings of the justices appear to run just as high as those of the American public. Never the less, an objective analysis of the Constitutional ramifications of the SSM decision is necessary in the aftermath of this landmark case. In this article, I attempt that analysis.

I will begin with my conclusion and then explain how I came to this conclusion. The Court’s decision in Obergefell v. Hodges is a clear case of the Justices legislating from the bench. Five of the justices appear to have ignored the Constitution in favor of their personal worldviews and public sentiment. Unfortunately, this is not uncommon—Court’s have done this since they were established. However, this approach almost always causes more problems than it solves. This is likely to be the case with the SSM decision, regardless of where the reader stands on the issue. When it comes to Supreme Court decisions, the legal tool used on your behalf today can become the weapon used against you in the future. In effect, when the Justices legislate from the bench, both sides—plaintiff and defendant—eventually lose. Bad decisions lead to bad laws and bad laws harm all Americans.

To continue the analysis, Obergefell v. Hodges should never have been granted certiorari in the first place. When the Supreme Court agrees to hear a case, it sends a powerful statement to the world. Granting certiorari means the Court is saying “We have the authority to rule in this case and our ruling is final.” A fundamental problem in this case is that the Court did not have the authority to rule. The Supreme Court’s authority is specifically set forth in the Constitution and is limited to issues covered by the Constitution. Marriage is not nor has it ever been a Constitutional issue. The Constitution does not define marriage. Hence, the Supreme Court has no authority to redefine it. This is an important point.

The Court’s SSM decision did not define marriage, it re-defined it. The Supreme Court was not asked to define marriage in Obergefell v. Hodges, it was asked to re-define it. In taking this step, the Justices violated the Constitution in three ways. Specifically, the five Justices whose opinions prevailed violated: 1) the moral law upon which the Constitution is based, 2) the concept of federalism set forth in the Constitution, and 3) the requirement in the Constitution that every state be guaranteed a Republican form of government. In addition to these violations of the Constitution, the Supreme Court also violated the long-honored tradition in the law of basing new decisions on legal precedent. The concept is known in the language of legal scholars as Stare Decisis. (Let stand what has been decided).

As to violating the moral law, the Supreme Court simply ignored the fact that the framers of the Constitution were guided and informed by the words of Jefferson in the Declaration of Independence when he wrote that America is to be governed according to “the laws of nature and of nature’s God.” The laws of nature’s God clearly prohibit same-sex marriage. This is not a political statement. Rather, it is an objective reading of the Constitution that is validated repeatedly in the Founding documents, including the Declaration of Independence, the Federalist Papers, and the recorded statements of the framers. Marriage as a concept was not invented nor was it defined by man. It was defined by God thousands of years before the Constitution existed when God created Adam and gave him Eve as his wife. Consequently, to attempt to redefine marriage is to ignore the moral law upon which our nation was founded and upon which our Constitution is based.

The Supreme Court also violated the concept of federalism established in the Constitution. Federalism is a concept in which government is limited and most of the enumerated powers of government are assigned to the individual states as are any duties not specifically assigned to the federal government. With federalism the national government’s powers are purposefully limited. In fact, the enumerated powers of the federal government described in the Constitution total only seventeen.

There is nothing in the Constitution about marriage, much less an enumerated power concerning marriage that is assigned to the federal government. Consequently, the issue of same-sex marriage is a state issue—not a federal issue. In other words, the Supreme Court should never have agreed to hear Obergefell v. Hodges in the first place. By hearing the case, the Justices unlawfully impinged on the prerogatives of the states and, by doing so, violated the Constitution. I fully understand the inconvenience to SSM advocates of having 50 states in which some allow SSM and some do not. But this inconvenience of federalism is far outweighed by the benefits of self-government and personal liberty.

The final flaw in the Court’s SSM decision can be found in Article IV, Section 4 of the Constitution which reads in part: “The United States shall guarantee to every State in this Union a republican form of government.” This means that the states are empowered to elect public officials who, in turn, enact public policy for the state. For the Supreme Court to over-rule these state-level policies is a clear violation of a constitutional guarantee. Since 30 of the 50 states had already passed legislation verifying that marriage is the union of one man and one women, the Supreme Court violated the guarantee of federalism set forth in Article IV, Section 4 of the Constitution by ruling on Obergefell v. Hodges; a case the Court should have refused to even hear.

When individuals are so emotionally invested in a Supreme Court decision, it is natural that they would welcome a favorable ruling regardless of the long-term consequences of the decision. But cases decided on shifting societal trends and emotion rarely make good law, and bad law hurts all Americans. Consequently, when one takes the long view and considers all of the ramifications, Obergefell v. Hodges should have been returned to the individual states for action by their state legislatures.

Dr. Goetsch is a retired college Vice-President and professor of business and political science, a business consultant, and a widely-recognized public speaker. He is the author of more than 70 books on leadership, management, business, and political commentary.